The Nelson Mandela Foundation said in a statement that it was time to acknowledge that the old flag was a symbol of what was a crime against humanity and that its gratuitous public display celebrated that crime and humiliated everyone who fought against it – especially black South Africans. File photo: African News Agency (ANA)

Cape Town – Apartheid was a crime against humanity and displaying the old flag of South Africa represents support for that crime.

This is what the Nelson Mandela Foundation will argue in April when the Equality Court hears the matter of the old South African flag possibly constituting hate speech.

The foundation announced in February last year that it had made an application to the court for an order declaring that gratuitous displays of the flag of apartheid South Africa constituted hate speech, unfair discrimination and harassment, based on race.

The foundation said in a statement that it was time to acknowledge that the old flag was a symbol of what was a crime against humanity and that its gratuitous public display celebrated that crime and humiliated everyone who fought against it – especially black South Africans.

It was important the Promotion of Equality and Prevention of Unfair Discrimination Act (“Equality Act”) be used as an instrument to discourage such behaviour, said the foundation.

AfriForum has opposed the foundation’s application, primarily on the basis that the order sought would infringe on South Africans’ right to freedom of expression.

They also argue that the Equality Act’s provisions on hate speech don’t cover displays and communications involving symbols and images, rather than words.

The South African Human Rights Commission and Johannesburg Pride have thrown their weight behind the foundation’s application.

In its heads of argument, the commission declared that it had an interest in forcing amendments to the Equality Act, should its hate speech provisions be found by the court not to cover displays of symbols like flags.

The foundation said it embraced the Constitution’s enshrined right to freedom of expression and believed that South Africans must respect constitutional limits on that right, and must protect one another’s right to dignity.

In its heads of argument, the foundation said: “The old flag represents nothing more than the inhumane system of racial segregation and subjugation that governed South Africa before April 27, 1994.

“Apartheid was a crime against humanity. Displaying the flag of apartheid South Africa represents support for that crime. And a total rejection of tolerance, reconciliation and all of the values underlying the constitution.

“Even if the Boer-British reconciliation (allegedly symbolised by the 1928 flag) was capable of ‘appreciation’ for its ‘culturally historic value’, this appreciation would not qualify for recognition under our current Constitution,” read the foundation’s arguments.

The court will hear the matter on April 29 and 30.

Cape Times